“She Invited Trouble”: Allahabad High Court Judge’s Bail Order In Rape Case

Weeks since an Allahabad High Court judge noted that grabbing breasts or snapping a pyjama string do not amount to rape or attempt to rape, his colleague has released on bail a rape accused, pointing out that the victim “invited trouble and was also responsible for the same”.

As per FIR lodged in September last year, the victim is a postgraduate student and stayed as a paying guest in Delhi. On September 21, she and her friends went to a restaurant at Hauz Khas. They had a drink there till 3 am and were “very intoxicated“. “As she was in need of support, hence, she herself consented to go to the applicant’s house and rest,” Justice Sanjay Kumar Singh has stated in the order.

“The victim’s complaint that applicant rather than his house took her to his relative’s flat and raped her twice is false and contrary to the evidence on record. On the basis of said facts, it is contended that looking to the facts of the case as revealed by the victim, it is not a case of rape but could be a case of consensual relationship between the parties involved,” the order stated.

Justice Singh has stated that the defense counsel of the accused has argued that there is no possibility of him fleeing the judicial process or destroying evidence. The defense counsel has also indicated that Nischal has been in custody since December 11 and that he does not have any criminal record. The defense counsel has assured the court that the accused will not abuse the freedom of bail.

The order further states that the state government’s attorney opposed the petition for bail but was unable to challenge the “factual aspect of the matter.”.

“After having heard the learned counsel for the parties and considered the matter in its entirety, I find that it is not in dispute that victim and applicant both are major. Victim is M.A. student, therefore, she was capable enough to know the morality and importance of her act as revealed by her in the FIR. This Court is of the opinion that even if the victim’s allegation is taken to be true, then it can also be inferred that she herself invited trouble and was also responsible for the same. The same stand has been adopted by the victim in her statement. In her medical examination, her hymen was torn but doctor did not give any opinion regarding the sexual assault,” the judge has observed in the order.

The court released Nischal Chandak on bail, directing him to assist the investigation.

This comes weeks after Allahabad High Court Justice Ram Manohar Narayan Mishra’s March 17 judgment that has created a huge controversy for its ridiculous comments. The accused were opposing a summons from a lower court under Section 376 of Indian Penal Code for rape.

“.the contention against accused Pawan and Akash is that they had taken hold of breasts of the victim and Akash attempted to bring down lower garment of the victim and for it they had torn string of her lower garments and attempted to take her under culvert, but in view of presence of witnesses they abandoned victim and ran away from the site of occurrence. This fact will not be sufficient to infer that the accused persons had made up their minds to commit rape upon victim as nothing else is given against them beyond these facts with a view to promote their assumed intention to commit rape upon victim,” states para 21 of the high court judgment.

Lower court had issued summon to the accused under IPC Section 376 regarding rape, along with Section 18 of the Protection of Children from Sexual Offences (POCSO) Act. Overruling this, the high court judge had ruled, “In order to prove a charge of attempt to rape the prosecution must show that it had passed the stage of preparation. The distinction between preparation and actual attempt to commit an offence lies mainly in the higher degree of determination.”

The ruling was severely criticized by the Supreme Court, which said it evinced a “total lack of sensitivity”. The high court said that it was perturbed to read some observations in the judgment and asked for responses from the Centre and the Uttar Pradesh administration.

“We are distressed to record that it betrays complete insensitivity on the part of the author of the judgment. It was not even in the heat of the moment and was given four months after reserving the same. Therefore, there was application of mind. We are generally reluctant to grant stay at this stage. But as observation in paragraphs 21, 24 and 26 is alien to cannons of law and is inhuman approach, we stay the observations in said paras,” the apex court remarked.